F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

DEC 23 1999

PATRICK FISHER
Clerk

GREG VANDERWAGEN;
DEBORAH (VANDERWAGEN)
LUCAS, formerly known as Deborah
Slaughter,
Plaintiffs-Appellants,
v.
J.C. PENNEY LIFE INSURANCE
COMPANY, a foreign Insurance
Company,

No. 98-2279
(D.C. No. CIV-98-20-LCS)
(D. N.M.)

Defendant-Appellee.

ORDER AND JUDGMENT

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

of this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiffs Greg Vanderwagen and Deborah (Vanderwagen) Lucas appeal
from the district courts grant of summary judgment in favor of defendant
J.C. Penney Life Insurance Company on their claim for insurance coverage
relating to the death of their father.

Reviewing the district courts decision

de novo, see Anderson v. Coors Brewing Co.

, 181 F.3d 1171, 1175 (10th Cir.

1999), we affirm.
Plaintiffs are the beneficiaries on two life insurance policies issued by
defendant covering their father, who was killed while operating a bulldozer on
private land. Plaintiffs sought coverage for his death under the provision of the
policies covering death in land motor vehicle accidents. Defendant denied
coverage under this provision, on the basis that a bulldozer was not a land motor
vehicle, and paid them the benefits due under the policies for death resulting
from accidents not involving land motor vehicles or common carriers. The
difference in benefits between the two provisions of the policies is $120,000.
Plaintiffs brought this action to recover that difference.

The parties consented to proceed before a magistrate judge pursuant to

28 U.S.C. 636(c)(1).

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The dispute centers on whether a bulldozer falls within the policies

description of what a land motor vehicle is. As the case has been presented,
there are two critical aspects to this description. Both policies state that a land
motor vehicle includes any gasoline, diesel, or similarly powered vehicle
customarily used for transportation on land

. Appellants App. at 64, 80

(emphasis added). The descriptions further provide for a licensing requirement,

with the above phrase followed in one policy by and for which the operator is
normally licensed, id. at 64, and in the other by and for which the operator is
required by law to be licensed,

id. at 80. The policies further provide that they

are to be interpreted in accordance with Illinois law. Under Illinois law,

[t]he construction of an insurance policys provisions is a question of
law. . . . If the words in the policy are unambiguous, a court must
afford them their plain, ordinary, and popular meaning. However, if
the words in the policy are susceptible to more than one reasonable
interpretation, they are ambiguous and will be construed in favor of
the insured and against the insurer who drafted the policy.
Outboard Marine Corp. v. Liberty Mut. Ins. Co.

, 607 N.E.2d 1204, 1212

(Ill. 1992) (citations omitted).

In determining that a bulldozer did not fall within the policies description
of a land motor vehicle, the district court first held that the phrase customarily
used for transportation is not ambiguous and that a bulldozer is not customarily
used for transportation. The court further held that, even assuming that phrase
were ambiguous, plaintiffs had stipulated that no special license was required to
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operate a bulldozer. Therefore, the bulldozer did not satisfy the one policys
requirement that the operator be licensed. Turning to the other policy, the court
rejected plaintiffs argument that because bulldozer operators normally have
regular drivers licenses, the bulldozer fell within the licensing requirement.
It found that this interpretation was not equally plausible to defendants
interpretation, which was that normally licensed meant licensed to engage in
that specific activity, i.e., bulldozer operating. It therefore concluded that
defendants interpretation controlled.
On appeal, plaintiffs contend that a bulldozer clearly falls within the
policies description of a land motor vehicle, and alternatively, that the
description is ambiguous and should be construed in their favor to provide
coverage. They further contend that the court applied the wrong standard for
determining whether an insurance policy term is ambiguous, arguing that the
correct standard is whether the term is susceptible of differing reasonable
interpretations. Appellants Br. at 24 (citing

Outboard Marine , 607 N.E.2d

at 1212).
We have fully considered plaintiffs arguments and reviewed the record,
and we find their arguments unpersuasive. Even assuming the district court
applied the wrong standard for determining ambiguity, we see no reversible error
because the description of land motor vehicles is not reasonably susceptible to an
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interpretation that would provide coverage. Therefore, for substantially the same
reasons as stated by the district court in its September 15, 1998 memorandum
opinion and order, we affirm its grant of summary judgment in favor of
defendant.
AFFIRMED.

Entered for the Court

John C. Porfilio
Senior Circuit Judge

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